164
Opinion of the Court
ployee or claimant becomes aware, or . . . should have been aware, of the relationship between the employment, the disease, and the death or disability," then when is it? 13 To the
Director's response that in the case of occupational hearing loss the time of injury is the date on which the disabling condition is complete, that is, the date of last exposure to the workplace noise, both courts found that the "date of last exposure" rule had been rejected by other courts and by Congress and therefore should not be resurrected absent some indication of congressional intent to do so. Ingalls, 898 F. 2d, at 1093-1094; Sowell, 933 F. 2d, at 1566-1567.
We do not find the reasoning of these courts persuasive for two reasons. First, the statute provides that the retiree provisions apply not to every occupational disease, but just to an occupational disease "which does not immediately result in . . . disability." 33 U. S. C. § 910(i) (emphasis added). Asbestosis is such a disease; hearing loss is not. In ignoring the fact that occupational hearing loss does immediately result in disability, the Courts of Appeals for the Fifth and Eleventh Circuits have essentially read that key phrase out of the statute. Congress certainly could have enacted a compensation system that treated retirees differently from current workers in all cases, regardless of the nature of the particular occupational disease from which they suffered. As we read the statute, however, that is not the path Congress took.
Second, while it is true that prior to the 1984 amendments some courts had rejected fixing the time of injury, and thus the applicable average weekly wage, as the date of last exposure to the harmful substance, those cases involved long-latency diseases such as asbestosis. See, e. g., Todd Ship-13 As explained above, the average weekly wage used to calculate benefits under the Act is the wage that the claimant was receiving at the time of injury. Thus, in order to calculate benefits under the Act, one must be able to identify the appropriate time of injury.
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